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The Legalities of Preventing Islamic State

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About The Author

Sophie Cole-Hamilton (Writer)

Sophie is a second year law student at the University of Birmingham. Sophie aspires to qualifying as a solicitor, with an interest in all areas of private law. Outside of her studies, Sophie is part of the Birmingham Law School pro bono group and has a passion for writing.

Since gaining significant prominence in the Middle East in 2014, Islamic State (ISIS) have become known as a notoriously dangerous force across the world for their brutal practices and numerous terrorist attacks. Most recently these attacks have included the bombing of Suruc, Turkey which killed 32 people, and the beach massacre in Sousse, Tunisia in June which killed a total of 38 people, including 30 Britons. Following the recent attack in Turkey, the Turkish government has begun to attack IS’s positions within Syria to defend Turkey’s security. Meanwhile in the UK, the threat of British Muslims becoming radicalised and joining ISIS has recently become a significant reality for the government; for example, in recent days, a man has been charged with planning a terrorist attack on a US military base in the UK. He faces a further charge for planning to join ISIS in Syria.

Given the threat of ISIS is ever-increasing across the world there has been international outcry for intervention by transnational bodies, including the International Criminal Court (ICC). This article aims to examine the likelihood of ISIS being brought to justice under current international and domestic counter-terrorism laws.

ISIS’s presence in Iraq and Syria

Currently, much of Iraq is under ISIS’s control after the terrorist group took advantage of civil unrest between Iraq’s Shia Muslim-led government and the minority Arab community of Sunni Muslims in 2013. Following this, ISIS invaded the Iraqi cities of Falluja, Mosul and eventually Baghdad; many other areas of the country are now living under ISIS’s regime. However, it is not entirely clear as to how many civilians are living under the group’s control across both countries; recent estimates state that the figure stands at around 10 million people. In a recent UN report it was found that at least 5,576 Iraqi civilians were killed between January and June of this year as a result of the conflict, with a further 11,665 wounded. Within that 6 month period, 1.2 million Iraqi civilians have also fled their homes to seek refuge in other countries.

During civil unrest concerning Syria’s President Bashar al-Assad’s regime, ISIS created the al-Nusra front as a direct rebellion against his presidency. Following this, ISIS declared a caliphate (otherwise known as an Islamic state) stretching from Aleppo in Syria to the Diyala province in Iraq. It is estimated that since ISIS invaded Syria, 4 million civilians have left the country, with many fleeing to Turkey and Lebanon. Since their formation, it is estimated that ISIS has recruited between 20,000 and 32,000 militants from 100 countries across the world. Given the significant presence of ISIS within the Middle East, it is unsurprising that Barack Obama has warned that defeating ISIS will be a ‘long term campaign’. Given this statement and the failed attempts thus far at prosecuting ISIS terrorists, the likelihood of stopping ISIS’s current prominence in the near future is seemingly low. It is likely instead that intervention will be needed.

Previous attempted intervention

In April, it was held by the ICC that its jurisdiction was not sufficient enough to open an inquiry regarding ISIS’s ‘crimes of unspeakable cruelty’, given that neither Iraq nor Syria are currently members of the ICC. Under the Treaty of Rome in which the ICC was founded, the prosecutor is only able to investigate and prosecute crimes committed within a country’s territory or by its nationals where the country is a member of the ICC, or alternatively, where it has declared it will accept the ICC’s jurisdiction. Presently, neither country under the control of Islamic State is eligible for prosecution, as neither Syria nor Iraq meets this criterion.

The ICC was established within a conference of 160 States Parties in 1998, creating the Rome Statute of the International Criminal Court. The statute states that the ICC’s jurisdiction is limited to the ‘most serious crimes of concern to the international community’. Under Part 2, Article 5 of the Statute, the following crimes can be investigated and prosecuted by the ICC:

  1. Genocide
  2. Crimes against humanity
  3. War crimes
  4. The crime of aggression

ISIS’s acts would more than likely fit under crimes against humanity under Article 7 of the Statute. Crimes against humanity can be murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or deprivation of liberty, torture, rape and forced prostitution, or persecution of any identifiable group on discriminatory grounds including political, cultural, religious and racial grounds. Where any of these acts are committed as part of a widespread or systematic attack directed against any civilian population, they satisfy the criterion contained in Article 7.

Further, ISIS is likely to have committed war crimes under Article 9. Although the provisions within this article are too vast to list here, war crimes exist where the following examples are committed as part of a plan or policy, or as part of a large scale commission of such crimes on an international scale. These include many of the crimes given within Article 7, with the additions of intentional attacks against civilians, attacking settlements and many others.

It was said by the prosecutor, Fatou Bensouda, that although militants were joining ISIS from across the world, the group itself appeared to be led by Syrians and Iraqis. Under Article 15 of the Statute, the prosecutor’s role in the ICC is to initiate investigations on the basis of information on crimes within the ICC’s jurisdiction. In terms of her statement regarding ISIS’s leadership, Bensouda appears to be correct; Abu Bakr al-Baghdadi is from Iraq. As a result of this, the ICC is unable to intervene with the atrocities committed across the two countries and elsewhere in the world at the present time. 

Despite this being the case, it is entirely understandable that the ICC and other transnational organisations including the United Nations are keen to dismantle ISIS’s effect both in Iraq and Syria and elsewhere internationally. Following the ICC’s statement declaring its inability to open a case against ISIS, Bensouda stated that:

Crimes of unspeakable cruelty have been reported, such as mass executions, sexual slavery, rape and other forms of sexual and gender-based violence, torture, mutilation, enlistment and forced recruitment of children and the persecution of ethnic and religious minorities, not to mention the wanton destruction of cultural property; the commission of the crime of genocide has also been alleged.

Given the reports of these atrocities and the evidence available (including the beheadings of several Western civilians), further options must be explored in order to stop ISIS in its tracks.

Domestic counter-terrorism legislation

In recent months, the Home Office has been under considerable strain considering the number of people leaving the UK to join ISIS. The number of those who have left the UK for this purpose is hazy, with the current figure being estimated at over 700. Given this significant endemic, the Counter Terrorism and Security Act 2015 (‘the Act’), was unsurprisingly rushed through the Commons and Lords in recent months. The Bill gathered support across Parliament and was rushed through its final reading in the House of Commons within 15 minutes. This is the seventh counter-terrorism Act to be enacted by Parliament in the last fourteen years and runs significant risk of breaching the civil liberties of both foreign and UK nationals. The main crux of the Act’s purpose is to deter and prevent  potential British ISIS recruits from joining the terrorist group in Iraq and Syria; tied in with these restrictions, so-called ‘Jihadi brides’ are also  prevented under the Act from going to ISIS controlled areas, where women are often sold into the sex trade. James Brokenshire, who at that time was Minister for Immigration and Security, stated that the Act would ‘help the Government and law enforcement agencies to keep the country safe from terrorism’.

In essence, the Act provides several key aims. Sections 1-9 grant authorities the power to seize the passports of those who are suspected of intending to leave the UK to partake in ‘terrorist related activity’, and also allow the courts to grant temporary exclusion orders to British terrorist suspects wishing to re-enter the UK. Following a temporary exclusion order, the courts may grant a ‘permit to return’ when the suspect has made a direct application to the Home Office in that regard, or where they are at risk of deportation to the UK.

Another key part of the Act is the amendment of ‘terrorism prevention and investigation measures’ as contained under Part 2 of the Act, otherwise known as TPIMs. These new provisions prevent those charged with a TPIM from leaving or re-entering the UK, and allows for the Home Office to relocate those serving under a TPIM where necessary, or enforce meetings between themselves and probation staff.

Understandably, some of the aforementioned provisions have come under fire for being discriminatory in nature; human rights organisations such as Liberty have criticised the fact that authorities are able to seize the passports of those they believe will partake in terrorist related activity; according to Liberty, this is a discredited ‘stop and search’ mechanism which will allow officials to easily discriminate against both foreign nationals and UK citizens. In terms of seizing the passports of non-UK nationals, Liberty warned that this provision of the Act could leave such persons destitute. They warned that it could also interfere with the UK nationals’ family and private lives, which would in turn be in breach of the European Convention on Human Rights. Namely, this provision could breach Article 8, which imposes the right to respect for private and family life.

 As well as this, Liberty highlight the issues surrounding ‘stop and search’ powers and their disproportionate use upon Black or Asian persons over White persons. Liberty assert that under Section 44 of the Terrorism Act 2000, which has since been repealed, Black or Asian people were up to seven times more likely to be stopped and searched. Under this particular provision, none of those people were ever charged or convicted of a terrorism offence. Further, Liberty assert that the use of ‘stop and search’ is often ineffective in other statutory provisions; since 2001, over 1 million people have been stopped and searched by the police, with only 9% subsequently arrested. Prior to the implementation of the Act, Liberty suggested instead that the current bar on police bail following the arrests of suspected terrorists should be lifted. This would allow the individual’s passport to be used as a condition of bail but would require the authorities to arrest and interview subjects before their passport was seized. Such an approach would better respect the human rights of terrorist suspects.

There are also problems with temporary exclusion orders (TEOs), provided for under Section 2 of the Act. During the Bill’s second reading, Dominic Grieve MP argued that this section was draconian in its approach and went against the presumption of innocence until proven guilty. He also asserted that that the principle of exile had not been used in the UK since the 17th century and was thus outdated. Further to this, Liberty noted that TEOs are a ‘draconian and unusual power’.

Concern has been expressed that aspects of the Act are likely to alienate British Muslim communities, in particular the use of terrorism prevention and investigation measures (TPIMs) under Part 2 of the Act. Those detained under TPIMs and their families are said to feel hopeless, isolated and worthless during this detention period. Liberty warn that over the long term, this could affect the UK’s national security by targeting and isolating individuals; in driving communities away in this manner, it may turn later generations of such families to extremist views.

In particular, the Act imposes a duty on public bodies including the police, schools, local councils and universities to have ‘due regard to preventing people being drawn into terrorism’. For instance, the requirement for universities to prevent extremism is in breach of the Education Act 1986 whereby universities are required to protect free speech. As well as this, the Act may breach confidentiality between students and staff. Namely, the Act allows decisions to be made by universities to exclude persons whom have an extremist but legal point of view, in light of the risk that those who hear such views could be drawn into extremism themselves.

Given the vagueness of this legislation and the speed at which it was passed through Parliament, it is unsurprising that flaws can easily be found. In particular, a number of its provisions are discriminatory. Despite the need for modernised counter-terrorism law in line with the threat of ISIS, some of the Act’s provisions are far too vague in nature and its rush through Parliament is clear. It is likely its discriminatory and vague measures will contribute little in the dismantling of ISIS given the Act’s significant loopholes. However, updated preventative measures can be useful and may successfully deter some would-be British ISIS recruits from joining given the consequences. If the new Act can work alongside existing domestic counter-terrorism legislation in a positive manner, as well as working alongside interventionist international forces such as the ICC, it may see some success in preventing extremism within the UK.

Conclusion

As has been acknowledged by many, the fight against ISIS has never been perceived as an easy ride. Unfortunately, it may be many years and many deaths later before the extremist group are brought to an end. Significant damage has already been caused by the terrorist group across the world in its numerous terrorist attacks, and to civilians living under ISIS’s control. In its current state, neither domestic nor international law seems fully equipped in dealing with the significant threat of ISIS.

Current domestic legislation is vague in nature and may infringe the human rights of terrorist suspects. In a few years, the new Act may be subject to significant changes, as was the Anti-Terrorism, Crime and Security Act 2001 following its rushed implementation after the devastation of 9/11. In a situation where many countries including the UK are on high security alert for terrorist attacks by ISIS, it does not bode well to have shoddy and discriminatory legislation such as the new Act. Until more thorough legislation is produced domestically, it is unlikely ISIS will be brought to a standstill through international interventionist methods, such as those exercised by the ICC. Even if clearer legislation is implemented within the UK, domestic legislation cannot end ISIS alone. Rather, similar preventative measures must be adopted in other Western countries. Similarly, Middle Eastern countries where ISIS is gaining significant support would need to implement such measures in order for this to be effective. Given that it is unlikely such countries will withdraw their support for ISIS in the near future, it is highly improbable that significant progress will be made in stopping ISIS on an international scale any time soon.

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Tagged: Anti-Terror, Criminal Law, International Law

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